UNBIASED - August 28, 2024: Jack Smith Files New Election Subversion Indictment, TikTok to Face Lawsuit Over 10 Year Old's Death, Court Upholds Ban on Undocumented Immigrants Possessing Firearms, and More.

Episode Date: August 28, 2024

Welcome back to UNBIASED. In today's episode: Special Counsel Jack Smith Files Superseding Indictment Against Trump (0:53) Appeals Court Says TikTok Must Face Lawsuit Over 10-Year-Old's Death (6:49) Court Upholds Ban on Undocumented Immigrants Possessing Firearms (10:59) Supreme Court Upholds Block on Biden's Student Loan Repayment Plan (13:19) Quick Hitters: Commercial Spacewalk Flight Delayed, SpaceX's Falcon 9 Rocket Fails, Harris and Walz to Sit for Joint Interview, Berkshire Hathaway Hits $1 Trillion, Conflicting Stories About Trump Campaign Altercation at Cemetery (14:39) Daily Critical Thinking Exercise (16:36) Listen/Watch this episode AD-FREE on Patreon. Watch this episode on YouTube. Follow Jordan on Instagram and TikTok. All sources for this episode can be found here.  Learn more about your ad choices. Visit podcastchoices.com/adchoices

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description. It's as easy as signing up, subscribing to my Patreon page for $6.99 a month. You will never have to hear an ad again. As a reminder, if you love the unbiased approach that this episode provides and you feel more informed after listening, please go ahead and leave my show a review on whatever platform you listen, share the show with your friends. And if you're watching on YouTube, if you could just go ahead and hit that thumbs up button and subscribe to the channel if you're not already, all of those things really help me out. So thank you very much. And without further ado, we can get into today's stories. Last night, special counsel Jack Smith filed a superseding indictment in the election interference case against former President Trump. We'll talk about what it means, but this is not to be

confused with the story that we just covered yesterday about Jack Smith's appeal. That appeal was in the classified documents case in Florida. This new superseding indictment is in the federal election interference case. So two completely different cases, but both cases were brought by Smith. First and foremost, a superseding indictment is just a new indictment that replaces an original indictment. It's typically filed for purposes of changing, adding, or deleting charges, or even changing, adding, or deleting defendants. In this case, the charges are the same. The defendant is the same. What changed were simply the allegations in the indictment. And that's because of the Supreme Court's recent presidential immunity ruling. So let's remember what that ruling was so that this all makes sense. What the Supreme

Court said is that a former president has some immunity from criminal prosecution. And this is how that breaks down. A former president has absolute immunity for his actions that fall within his constitutional authority. A former president has presumptive immunity for official acts, meaning there is a presumption in his favor for immunity when it comes to official acts, and it's on the prosecution to rebut and overcome that presumption. And then finally, a former president has no immunity at all for unofficial acts. And just to sort of round out that conversation, the way that the prosecution can rebut a presumption of immunity when it comes to official acts is by showing that criminal prosecution of that official act would pose no dangers of intrusion on the authority and functions

of the executive branch. So what this means is that for Smith to even attempt to prosecute Trump for election interference, he has to make it very clear that Trump's actions were either unofficial actions not entitled to any immunity or official actions that may be susceptible to a rebuttal. And that is why he filed the superseding indictment. He reframed some of the original allegations to portray them in a bit of a different light. As an example, the original indictment reads, quote, the defendant had a right, like every American, to speak publicly about the election, end quote. But the new indictment reads, quote, as a candidate and citizen, the defendant had a

right, like every American, to speak publicly about the election, end quote. And the reason the verbiage was added there was to reinforce the idea that Trump was acting as a candidate, not the president, and also as a private citizen when he took the actions that he did. The more private an action is, the more likely the prosecution can prosecute. Similarly, the original indictment lists six different co-conspirators, which consists of four attorneys, one DOJ official, and a political consultant. The new indictment, though, lists those same co-conspirators but

describes them instead as private attorneys and a private political consultant. This change speaks to that idea of a private act, but it specifically speaks to something that was brought up at oral arguments. Trump's own attorney conceded at oral arguments that the use of a private attorney, quote unquote, sounds private. Also, in the majority opinion, in Trump's case, the justices wrote, quote, certain allegations such as those involving Trump's discussions with the acting attorney general are readily categorized in light of the nature of the president's official relationship to the office held by that individual. Other allegations,

such as those involving Trump's interactions with the vice president, certain officials, and certain private parties and his comments to the general public, present more difficult questions. Although we identify several considerations pertinent to classifying those allegations and determining whether they are subject to immunity, that analysis ultimately is best left to the lower courts to perform in the first instance, end quote. So what the justices are saying, they didn't exactly say that interacting with private parties as president is automatically an unofficial act and therefore doesn't come with immunity. But what they did say is that private conversations present a more difficult question. So given that, Smith, of course, is going to use the word private

whenever he can. And he did that in the new indictment. Another change that was made in the new indictment was the removal of an allegation about Trump and his co-conspirators attempting to use the power and authority of the DOJ to, quote, conduct sham election crime investigations. This part was likely removed because the Supreme Court justices hinted at the fact that any use of an executive agency would likely be seen as an official act, and therefore, Smith may feel it would be tough to rebut that presumption of immunity, and it's best that he just takes any DOJ-related allegation out. So it was changes like that. Again, the charges in the indictment didn't change. There are still four charges. Those charges include conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction or an attempt to obstruct an official proceeding, obstruction or an attempt to obstruct

an official proceeding, and conspiracy against rights. So that's the deal with the superseding indictment. I do have both the original and the superseding indictment linked in the sources section. If you're interested in seeing those differences and kind of seeing for yourself what changed and how the wording differs a bit, I also have the Supreme Court decision from Trump versus United States linked in the sources section. The next story is an interesting one considering the recent stories about social media platforms and liability. A United States appeals court, specifically the Third Circuit Court of Appeals, ruled that TikTok can face a lawsuit over the death of a 10-year-old girl who died after taking part in a viral challenge. So as we know, because we just talked about this a couple of days ago, maybe it was

even yesterday, I don't know, I'm losing track of my days, but we just talked about the law here in the United States known as Section 230. That's Section 230 of the Communications Decency Act. And what it does is it shields social media platforms from liability when it comes to the content posted on their platforms, particularly when it comes to content posted by others on their platforms. So there may be instances where a platform is liable for its own actions, but generally speaking, under Section 230, a platform cannot be liable for the actions of others on that platform. The example I gave most recently was the Supreme Court ruling last year that held that Twitter could not be held liable for tweets posted on the platform by ISIS members that eventually led to a terrorist attack. The TikTok lawsuit that's at the center of this story, though, is actually slightly different than the Twitter ISIS case because it's about algorithms.

So the girl's mother is suing TikTok, alleging that the company is liable for its algorithms and the content that it intentionally feeds to users. Specifically that one, TikTok was aware of this challenge, this viral challenge where people were choking themselves until they passed out. Two, TikTok allowed users to post videos of themselves participating in this challenge. And three, that TikTok recommended and promoted these videos to minors through its algorithm, which resulted in this child's death. Importantly, the court below dismissed the case because of Section 230, but the girl's mother appealed and the appellate court just ruled in her favor.

Important to this conversation is a recent case out of the Supreme Court called Moody v. Net Choice. Now, the justices didn't rule on the merits of that case, but in sending the case back down to the lower court for reconsideration, Justice Barrett, who wrote for the majority, suggested that when social media platforms create curated compilations of content originally created by other users, the platforms are engaging in expressive speech because the platforms are quote, shaping other parties' expression into their own curated speech products, end quote. And expressive speech is protected by the First Amendment.

So taking into account that rationale, the Third Circuit in this TikTok case wrote in its ruling, quote, Given the Supreme Court's observations that platforms engage in protected first-party speech under the First Amendment when they curate compilations of others' content via their expressive algorithms, it follows that doing so amounts to first-party speech under Section 230. Section 230 immunizes only information provided by another. And here, because the information that forms the basis of the lawsuit is TikTok's own expressive activity, Section 230 does not bar the claims, end quote. So this case is a really interesting intersection of Section 230 immunity in these platforms and their algorithms. Note, though, that this decision out of the Third Circuit does not

mean the mother won the case and TikTok has to pay damages. This ruling just means that the case can go forward, whereas before the lower court dismissed it. So from here, this case will go back down to the lower court. The lower court will have to, you know, allow all of the facts to be heard, and they'll render a decision on the merits of the case from there. Once that decision is finalized, the losing party, whoever it is, can then appeal, and perhaps it eventually makes its way to the Supreme Court because the Supreme Court has yet to issue a definitive ruling on social media liability when it comes to algorithms. They've had a few cases, but all have either been dismissed or sent back

down to the lower courts. This third story is another story out of an appeals court, this time out of the Fifth Circuit Court of Appeals, which has jurisdiction over Mississippi, Louisiana, and Texas. The three-judge panel of the Fifth Circuit upheld a federal law banning illegal migrants from possessing firearms. Jose Paz Medina Cantu was arrested by Border Patrol agents in 2022, and he was subsequently charged with illegally possessing a handgun and unlawfully re-entering the country after previously being deported. Medina Cantu ultimately pled guilty and received a sentence of 15 months in prison plus two years of supervised release. However, he reserved the right to argue on appeal that the gun charge

violated his right to keep and bear arms under the Second Amendment. His lawyer had based his argument on the Supreme Court's 2022 Bruin decision, which held that a firearm restriction is only constitutional if the restriction is consistent with this nation's historical tradition of firearm regulation. Medina Cantu's attorney argued that the ban on illegal migrants possessing firearms was not consistent with this nation's historical tradition of firearm regulation because there was no historical tradition of disarming people based solely on their immigration status and therefore, the law should be held unconstitutional, consistent with the rationale in Bruin. As noted though,

the Fifth Circuit disagreed with this argument and upheld the law. The Fifth Circuit had actually decided a case previously in 2011, which upheld the same federal law as constitutional. So consequently, in Medina Cantu's case, the judges wrote that in their 2011 decision, they held that illegal aliens are not members of the political community covered by the plain text of the Second Amendment, and that the recent Supreme Court rulings dealing with firearm regulations did not overturn that holding. Therefore, they have to follow that prior 2011 decision and uphold the constitutionality of the federal law at issue. From here, Medina Cantu can further

try to appeal the case to the Supreme Court, but it would be up to the justices whether they want to actually hear that case. Moving on to the Supreme Court and student loans. In a brief order today, the Supreme Court declined to lift an existing block on President Biden's student loan repayment plan called the SAVE plan. This means that the plan will remain on pause pending resolution of the case in the lower court. To give you just a brief background, President Biden started this SA save plan when his previous loan forgiveness plan was struck down by the Supreme Court. The save plan is a new loan repayment plan. It's not a forgiveness plan. So a few months ago after the save plan was implemented, some Republican-led states challenged it in court.

The states asked that while the lawsuit is pending, this repayment plan be put on hold, and the lower court granted that request. From there, the Biden administration took it to the Supreme Court, asked the justices to lift the block while the lawsuit was pending, but today the justices declined to do so. So by no means is today's order a ruling on the merits of the case. In fact, the court's order today has no immediate impact on the roughly 8 million borrowers that are currently enrolled in the plan. These borrowers are currently in an interest-free forbearance period while the litigation is pending. So because that plan has already been blocked, nothing is really changing here. Let's move on to quick hitters. Starting with an update to that commercial spacewalk story from Monday, the launch ended up

getting scrubbed on Tuesday morning to allow for a closer look at a groundside helium leak, and then again this morning due to weather. SpaceX doesn't have a specific expected launch date scheduled at this time, but the team will be assessing conditions day by day. Relatedly, a SpaceX Falcon 9 rocket launched yesterday, making its 23rd flight, but unfortunately as it landed on a drone ship, it tipped over and exploded. It was the first Falcon 9 landing failure since February 2021. Vice President Harris and Governor Walz will appear on their first joint interview Thursday at 9 p.m. Eastern time on CNN. This is also the first interview Harris has sat for since announcing her candidacy. This morning, Berkshire Hathaway shares briefly rose high

enough to give the company a market value of $1 trillion. This is the first time a non-technology company has achieved the $1 trillion milestone. Other companies on the list include Apple, Nvidia, Microsoft, Amazon, and Meta. And finally, a bit of he said, she said is happening following Trump's attendance at the Arlington National Cemetery on Monday. Trump was at the cemetery commemorating the third anniversary of the death of 13 service members during the withdrawal from Afghanistan when an unknown cemetery source said two Trump campaign officials engaged in a verbal and physical altercation with a staff member over the ability to take photos and videos. A representative for the cemetery confirmed an incident and said a report was filed but didn't provide specifics. Trump's campaign, on the other hand, said today that there was no physical

altercation and that the campaign is prepared to release footage if such defamatory claims are made. I'll keep you updated there if any facts come to light. For today's critical thinking segment, let's revisit the Medina Cantu case and think about where the line gets drawn, if at all, for when rights are extended to non-citizens, including those here illegally. As a refresher, the Medina Cantu case is the one we just talked about where the Fifth Circuit upheld the constitutionality of a ban on illegal migrants possessing firearms. In that holding, the judges noted that the we the people phrase of the constitution does not apply to those

in the United States illegally, and that's certainly a valid argument. But it's also worth noting that the Constitution does apply to non-citizens, including those in the country illegally, in some instances. Some of those instances include, but are not limited to, the Due Process Clause of the Constitution, the equal protection clause, the right to counsel in criminal proceedings, and the right to be free from unreasonable search and seizure, except when it comes to searches at the border. One notable Supreme Court decision was in a 1982 case called Plyer v. Doe. In that case, Texas had revised its state laws to exclude children of undocumented immigrants from being eligible to attend K-12 school. The Supreme Court struck

down the law holding that the children of undocumented immigrants are people as stated in the 14th Amendment. And under the Equal Protection Clause, one's immigration status is not a sufficient rationale for denying benefits afforded to other residents. Furthermore, if we look at the Constitution itself, it's a bit contradictory. As an example, Section 1 of the 14th Amendment reads, quote, all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States, end quote. But then it goes on to say, no state shall deprive any person of life, liberty, or property without due process of law, nor deny to any person within its

jurisdiction the equal protection of the laws, end quote. The choice of wording here begs the question, why wouldn't the framers continue using the word citizen after defining it? Why did they instead opt for the word people? Maybe the word people was meant to refer only to citizens, but also maybe not. There's an argument to be had on both sides. So I say all of this to implore you to think about why some rights are extended to non-citizens and others aren't. In your mind, where does that line get drawn, if at all? What are some reasons for either extending or not extending rights to non-citizens in your mind? And I don't expect you to come to an answer right away, by the way. These questions are actually meant to stick with you so that you give them some real thought. And it's

also really good practice to try to rebut the answer that comes to you naturally and immediately. That is what helps us really develop those critical thinking skills. That is what I have for you today. Stay tuned for tomorrow's episode where I'll be addressing some recent rumors in the new rumor has it segment to close out the week. I hope you have a great night and I will talk to you tomorrow.